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Home / Is the Use of an Actual American Flag in Art Work Illegal?

Is the Use of an Actual American Flag in Art Work Illegal?

Copyright Bug for Artists

Disclaimer: None of the information within should be construed as binding legal communication.

One of the near difficult subjects for artists to understand is copyright law, and it's an outcome that effects artists in many ways. Artists are ofttimes unsure if they retain reproduction copyright later on someone has purchased an original piece of artwork. Can someone else brand giclee prints afterwards the purchase the original? When getting artwork scanned, who owns the intellectual property? And then many legal type questions….

Full general Issues for Artists

First, many artists don't realize that they need permission from photographers if they utilise somebody else's photograph as reference for a painting. When an artist uses a photograph for reference, the painting or artwork is called a derivative work. While the artist tin can maintain some ownership over their ain piece of work, they first need permission from the original photographer to use the photograph for reference.

There are however clauses in copyright police force that allow for compilations, and uses of existing piece of work freely if used in role, or if the original work has been so modified that it tin't be recognized as a reference. At that place are many nuances here, and although in that location are legal cases that set up precedence, in that location is no accented ruling. Each case must be evaluated on its own merit in a civil court (copyright infringement is considered a civil issue, and is not punishable by criminal police).

Second, if you are a portrait artist, or figure artist, and you plan on selling works of art using somebody else's likeness, yous will need a model release in social club to sell the piece of work, and in many cases you lot will need a model release in gild to enter juried art shows. The reason is that the person being painted has certain rights about their ain likeness, and simply because a model sits for y'all, as a photographer or artist, does non mean that model assigned reproduction rights, or copy rights to you. That needs to exist an explicit contract between the model and the creative person or photographer, which includes a model release form.

Third, artists often worry about the copyright of their own work, and what their rights are in regard to their work. Many questions arise from this, such as "what if somebody steals my piece of work and uses it on their dwelling page on the Internet?", and "Tin can somebody take my artwork off the Cyberspace and make cards and sell them?". In fact, there are many artists who are afraid to put their art on the Internet for fearfulness that somebody will steal their work, or see it and recreate it, thereby stealing their ideas.

Unfortunately there are risks involved in promoting your piece of work and providing even low resolution digital versions for promotion, blogs, web sites and email. Copyright does not embrace ideas and information themselves, but the form or manner in which they are expressed, which means you can't stop people from copying a fashion or genre. However, the alternative to taking risk is really only to proceed your piece of work in a box where nobody can see information technology, and your art never gets exposed to the general public. In this case, of grade, your art is prophylactic, but will never exist known.

The subject of copyright is very complex, and is non simply constantly changing, simply it's also vague and open to interpretation.

Below you will discover a list of articles and references in regard to copyright law and implementation.

What is Copyright?

Copyright (or ©) is a grade of intellectual property which gives the creator of an original work sectional rights for a sure time period in relation to that work, including its publication, distribution and adaptation; after which fourth dimension the work is said to enter the public domain. Copyright applies to any expressible form of an idea or information that is substantive and discrete. Some jurisdictions also recognize "moral rights" of the creator of a piece of work, such as the right to be credited for the work. In particular the 19th century of intellectual property rights covers novel ideas, software and things similar genetic engineering.

What is the Origin of Copyright?

Although the origin of copyright dates back to the 1700s in England, copyright law is founded in the Constitution of the United States. The constitution explicitly grants Congress the power to create copyright police. Specifically, Congress has the power:

To promote the Progress of Science and useful Arts, by securing for express Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. Commodity 1, Section 8, Clause 8, (the Copyright Clause)

Note that copyright constabulary was originally not merely to benefit the author, but society every bit a whole. Its intention was "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the sectional Right to their respective Writings and Discoveries."

Modern copyright law has evolved greatly with the advent of technology and changes in U.s.a. and ooperative  international police is rooted in the Copyright Law of 1976. See Wiki for details @ http://en.wikipedia.org/wiki/Copyright_Act_of_1976.

What is a Creative Piece of work?

A artistic work is a tangible manifestation of creative effort such every bit literature,
music, paintings, and software. Creative works take in common a degree of arbitrariness, such that information technology is improbable that two people would independently create the aforementioned piece of work.The term is oft used in the context of copyright law.

Do I need to register my artwork with the library of Congress to have copyright?

If your photos, drawings, paintings or illustrations are first published in the United States or in a land with which the Usa has a copyright treaty, they are protected automatically without being registered with the US Copyright Role. Also, It'south always a good idea when publishing digital photos of your artwork online to put a copyright find on the image. You may put something like "© 2013, All Rights Reserved, … your name".

It'south as well a good idea to put copyright information and contact information in the meta information area of your paradigm files. Image files that you share on the internet all have hidden data in the file chosen "meta information". This includes a description of the prototype, the author and contact information. If you use Photoshop, open an prototype and go to file -> fie info, and y'all volition see the following dialogue box:

copyright meta data

copyright meta information

If you see somebody using your paradigm on the internet and information technology however contains that meta data, then it's much easier to prove that they stole it.

When you publish your photos on many of the pop photo sharing websites and stock photo websites, you lot will accept the option of deciding what kind of copyright find gets published with your image. There are different types of copyright that let you to a) reserve all rights b) reserve some rights but permit some shared use c) open source, allowing full commercial and non commercial use without reserve. These notices are all displayed along with the epitome, and there'southward no demand to register the image with Congress to merits those rights.

What is a artistic eatables license?

Creative Commons is a type of licensing that allows shared usage of copyrighted material. Creative Commons Licensing ways that y'all grant others some of the rights that you have to the photograph or image. Creative Commons licensing allows some flexibility, such as whether you lot permit commercial utilise of your photo, and whether yous require attribution, such equally your proper noun or website, with the use. As an artist creative commons images tin be a great resource for reference cloth to paint from, as many Creative Commons Licenses volition permit an artist to create derivative works. Information technology's important, notwithstanding, to read the terms of the creative commons license carefully, especially if you lot are creating commercial artwork as part of a final product to exist sold and reproduced in quantity.

The Creative Eatables license options include: "Attribution" (this license lets others distribute, remix, tweak, and build upon your work, even commercially, as long as they credit you for the original creation); "Attribution-NonCommercial" (this license lets others mix, tweak, and build upon your work non-commercially. And although their new works must also acknowledge you and be non-commercial, they don't have to license their derivative works on the same terms); and "Attribution-NonCommercial-NoDerivs" (this license is the most restrictive, just allowing others to download your works and share them with others every bit long as they credit you, but they can't modify them in any fashion or employ them commercially).

For more than information on the six dissimilar types of artistic commons copyright licenses, visit here: http://creativecommons.org/licenses/

How can I stop people from stealing my artwork on the cyberspace?

You can't. And so first of all, information technology'south probably a expert idea not to worry about it too much. The real question is, how practise you address the issue when you see it.

The answer probably lies in the context. If some fan of your piece of work posts 1 of your images on their facebook page, then little impairment was done. And if they gave y'all credit for information technology, and so it simply helps you, especially if you have a copyright notice on the image so people know how to find you lot if they desire to see more of your work, or if they're interested in commissioning something from yous, for example…

If you see widespread commercial abuse and theft of your images, then y'all probably demand to seek legal assistance. We've seen information technology happen occasionally, with very large retailers like Target, and information technology is in fact similar battling Goliath. But that shouldn't end yous from sharing your artwork and building an online reputation. But if your piece of work is stolen or used without your permission, here are some things y'all tin do.

1) Exercise Nothing

If the infringing person is in a foreign country where infringements are rampant and difficult to enforce or is a small website with lilliputian traffic, you may determine that it'southward non worth your fourth dimension and try to fight the infringement. Information technology may not be worth it at all, and in some cases may benefit you if it leads to more traffic to y'all and exposure of your art. In many cases people are using your art without permission, but aren't really making coin on it.

two) Request a Photo Credit

If the website provides marketing for y'all, y'all may just desire to get proper credit. If and then, write the infringing person or company a letter giving them the right to use the image. Exist sure to designate the parameters of that use, and so it's express to the website or whatever, but doesn't requite them free reign. Include the status that the person using your art piece of work post a photo credit with a copyright observe along with it. You lot may besides asking that a link be added back to your website.

iii)  – Set a Cease and Desist Alphabetic character Yourself

When you don't want to alienate the infringing person or corporation (they may be someone you lot know or  a potential client. Or they may be naive and don't sympathize what they're doing), yous may want to contact them to explain that the use is not authorized and either request payment, a photograph credit with a link to your website (as discussed above), or that they terminate use of the image. Information technology'due south best to practise this in writing , either past postal service or email.

Photographers sometimes ship an invoice for 3 times their normal license fee in an effort to resolve the infringement issue. While the 3x fee may be an industry standard and some courts have used it, is not a legal correct given past whatever court of law or statute. Instead, U.S. police force states that you are entitled to actual or statutory amercement for infringement as provided by 17 U.S.C. Chapter 5, specifically department 504. The amercement that you can receive from infringement – especially if you timely register your photographs – sometimes can corporeality to a lot more three times your normal license fee. And then you may desire to think 2x before you send the 3x letter.

At that place are some risks in sending the letter yourself. First, the infringing person or corporation may attempt to preempt an infringement lawsuit and file a request for declaratory judgment that the use is authorized. This may get yous involved in  legal activeness for which you may need legal counsel in a jurisdiction (court location) where you don't want to litigate.  Second, your need for payment may be admissible confronting you lot if an infringement case is filed. If you demand too trivial, so information technology may limit your ultimate recovery. To avert this possibility, include in your demand letter that "these discussions and offer to settle are an try to compromise this dispute."

iv)  – Hire a Lawyer to Send a Need Letter of the alphabet

When an attorney gets involved, the thing is escalated and tensions unremarkably rising. While the infringing person may be more defensive, the weight of your demand letter is dramatically increased if it comes from an chaser and the affair gets taken more seriously. Some attorneys charge a apartment fee to send a alphabetic character; others may charge a "contingency fee" which is based on the pct of recovery. Or the fee may be a combination of both. Whatever you exercise, if you involve an attorney and engage in a legal battle, be certain that the potential payout is worth the legal fees and risks of litigation. Resolving disputes with attorneys and courts can be very expensive, and many of the worst offenders are large corporations that steal artwork on a regular basis, and have teams of attorneys that settle law suits out of court with gag orders fastened, and then information technology's difficult to prove a history of litigation and claims against them.

5) Publicly Shame Them

Sometimes it's very difficult to sue a company when they've infringed on your copyright. If a company has traced your artwork or reproduced it exactly, then yous have a copyright instance. But many cases what they'll exercise is recreate your artwork just slightly differently then that it'southward not the verbal same image and that's difficult to fight. For example, Urban Outfitters is notorious for cleverly stealing people's artwork in a slightly different fashion. In cases when yous tin can't really fight the case legally, you can instead publicly shame the company or individual. Let the globe know they're thieves using social media, and if enough people do it the community tin can constitute a public tape of serial criminal behavior. This is often more than constructive in achieving results than the formal ways of seeking retribution, since companies as well don't want their reputations blemished.

What is Fair utilize?

Fair use is a doctrine in United States copyright police force that allows limited use of copyrighted material without requiring permission from the rights holders, such as use for scholarship or review.

Fair use deals with the concept that fifty-fifty though a work is copyrighted, and the artist, photographer, or author has sectional rights, that certain uses do not found copyright infringement. Some artists are under the misconception that once a work is out there in the wild, that any use requires permission.

Copyright attempts to residual the need for copyright protection with the demand for the public to freely exchange noesis for both educational, artistic and political reasons. While corporations accept been voracious regarding any use of copyrighted materials, and have overstepped their bounds and hijacked copyright law to the detriment of freedom of expression, the courts of have often eventually ruled in favor of gratis speech (We'll swoop into this discussion in more detail later on).

The pull a fast one on, therefore, according to The states police force, is to balance Commodity I, Section 8 of the US constitution
with First Subpoena rights for liberty of speech, besides as the general welfare and interests of society as a whole.

Equally defined past Department 107, under Title 17 of the United States Lawmaking:

§ 107. Limitations on exclusive rights: Fair use

Still the provisions of sections 106 and 106A, the off-white use of a copyrighted work, including such utilize past reproduction in copies or phonorecords or past whatsoever other means specified by that section, for purposes such equally criticism, annotate, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use fabricated of a work in any detail case is a fair use the factors to exist considered shall include—
(1) the purpose and graphic symbol of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted piece of work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work every bit a whole; and
(four) the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair utilize if such finding is fabricated
upon consideration of all the in a higher place factors.

What is a Work of Visual Art?

Under Title 17 of the United states of america Code, which defines copyright law, a work of visual art is:

(1) a painting, drawing, impress, or sculpture, existing in a unmarried re-create, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author, or, in the instance of a sculpture, in multiple cast, carved, or fabricated sculptures of 200 or fewer that are consecutively numbered past the author and comport the signature or other identifying marker of the author; or

(2) a still photographic paradigm produced for exhibition purposes only, existing in a single copy that is signed by the author, or in a express edition of 200 copies or fewer that are signed and consecutively numbered by the author.

A work of visual art does not include—
(A)
(i) any poster, map, globe, chart, technical drawing, diagram, model, practical fine art, motility picture or ther audiovisual work, book, magazine, paper, periodical, data base of operations, electronic information service, electronic publication, or similar publication;

(2) any merchandising item or advertizing, promotional, descriptive, covering, or packaging material or container;
(three) whatsoever portion or role of whatever item described in clause (i) or (ii);
(B) any work made for hire; or
(C) any work not subject to copyright protection under this title.

Q: What is the Digital Millennium Copyright Act?

The Digital Millennium Copyright Human activity (DMCA), was enacted in 1998, and implemented treaties signed at the 1996 World Intellectual Belongings Organization (WIPO) Geneva briefing. Information technology addresses many intellectual property problems, one of which affects photographers direct. The DMCA states that while an Isp (Isp) is non liable for transmitting information that may infringe a copyright, the Internet service provider must remove materials from websites that appear to constitute copyright infringement.

Your copyright does not have to exist registered with the U.S. Copyright Office for you to take reward of this provision. If you observe a website that is using ane of your images without permission, contact the hosting ISP and report the infringement. Contact the website possessor or ISP and request that an image exist taken downwardly, whether it be artwork, a photograph, or other intellectual property.

The DMCA also provides for certain damages when your piece of work is infringed. If the infringer has removed your copyright management information, such as your proper noun, contact data, or copyright detect, from your piece of work in an attempt to facilitate or muffle its infringement, the infringer may have violated the DMCA. Section 1202(b) of the DMCA prohibits the removal of "copyright management information" in certain circumstances. It states in pertinent part:

No person shall, without the say-so of the copyright possessor or the police—(1) intentionally remove or alter whatsoever copyright management information . . . . knowing, or, with respect to civil remedies . . . having reasonable grounds to know, that information technology will induce, enable, facilitate, or conceal an infringement of any right nether this title.

You can transport a DMCA Accept Downward Find yourself, or consult an attorney. A sample notice would look something like this:

*

***********************************************************
SAMPLE DMCA TAKE Downwards NOTICE

My name is XXXXXXX and I am the 30 Title of XXX COMPANY NAME. A website that your company hosts (according to WHOIS data) is infringing on at least one copyright owned by my company.

An article was copied onto your servers without permission. The original ARTICLE/PHOTO, to which we own the exclusive copyrights, tin can be found at: PROVIDE WEBSITE URL

The unauthorized and infringing copy can be found at:

PROVIDE WEBSITE URL

This letter of the alphabet is official notification nether Department 512(c) of the Digital Millennium Copyright Act ("DMCA"). I am seeking the removal of the aforementioned infringing cloth from your server(s). I request that you immediately notify the infringer of this notice and inform them of their duty to remove the infringing material immediately, and notify them to cease any further posting of infringing material to your server in the time to come.

Please also be advised that law requires you, every bit a service provider, to remove or disable access to the infringing materials upon receiving this notice. Nether U.s.a. law a service provider, such equally yourself, enjoys immunity from a copyright lawsuit provided that you act with deliberate speed to investigate and rectify ongoing copyright infringement. If service providers exercise not investigate and remove or disable the infringing material this amnesty is lost. Therefore, in order for you to remain immune from a copyright infringement activity you lot will need to investigate and ultimately remove or otherwise disable the infringing material from your servers with all due speed should the direct infringer, your client, not comply immediately.

I am providing this notice in good organized religion and with the reasonable belief that rights my company owns are being infringed. Under penalty of perjury I certify that the data independent in the notification is both truthful and accurate, and I accept the authorisation to human action on behalf of the owner of the copyright(s) involved.

Should yous wish to talk over this with me please contact me directly.

Thank you.

Insert YOUR NAME

Address
City, State Null
Telephone
Email

**********************

Copyright Free Resources for artists

Looking for that special something? Need a reference photograph for your next cartoon or painting that won't cause you copyright problems? At that place are plenty of resources now, and more opening upwards, for artists and photographers who need images.

  • Wikipedia Eatables
  • Flickr Commons
  • Flickr Creative Commons
  • Collage Collage Public Domain
  • world wide web.creativecommons.org
  • world wide web.savetz.com
  • Wikipedia Public Domain Resource

References

  • Title 17 of the United States Lawmaking
    (outlines United States Copyright Law)
  • International Copyright Police
  • The Berne Convention for the Protection of Literary and Creative Works
  • Digital Millennium Copyright Act
  • The Mickey Mouse Copyright Act
    Copyright extended to 100 years to save Mickey Mouse
  • Wiki Article on WIPO
  • Earth Intellectual Property Organization
  • Trademarks
  • U.s.a. push for IP conflicts with international norms.

Copyright Issues for Artists, Artist Copyright references, model releases, discussions about rights for artists, due process for artists, selling giclee prints, paradigm theft, copyright of images, illegal utilise of images, IP Theft of artist'southward piece of work.


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Source: https://www.bellevuefineart.com/copyright-issues-for-artists/