Have you ever wondered what your rights are as an artist? There’s no clear-cut textbook to consult—but we’re here to help. Katarina Feder, a vice president at Artists Rights Society, is answering questions of all sorts about what kind of control artists have—and don’t have—over their work.
Do you have a query of your own? Email [email protected] and it may get answered in an upcoming article.
I’m an art consultant who has commissioned an artist to produce a one-time wall covering for a commercial building. We initially intended for the images to be simple vector drawings illustrating amenities within the building. The imagery is so fresh and energetic that we expanded the idea to include referential imagery from the city. This includes images of two works of public art. Do I need to request permission from the artist/gallery/estate? The work will not be resold or published.
It’s clear from the content of your question that you respect public art. Butwhen a work of art is public, it does not mean it is in the public domain. Public art is like any other kind of art, and the copyright for it rests with the artist until 70 years after their death (unless it is signed away).
There is an exception worth noting: section 120 of the copyright law permits “pictorial representation” of an “architectural work that has been constructed” as long as the work is in an “ordinary and visible place.” Pictures of these works can be made and distributed without needing to obtain permission. But this rule only applies to architectural works. It says nothing about a mural, for instance, that may be painted on the side of one of these facades.
When an artist incorporates other intellectual property into her own, it is generally known as appropriation. This is easy to grasp when we consider people like Andy Warhol and Richard Prince, who take the murderous byproducts of capitalism (salt-flavored soup, cigarettes) and make art from them. But such borrowing is also allowed with other works of art. Greats like Sherrie Levine and Sturtevant made their careers pushing back against the terrifying masculinity of art history by remaking works and changing little about them. And who could forget Marcel Duchamp’s L.H.O.O.Q. (1919), which is just the Mona Lisa with a mustache and a dubious compliment?
When it comes to depicting other artworks, there’s little another artist can’t do. This also means that artists are generally given greater liberty when it comes to the use of public works in their own art. Take, for example, the 2013 case, Derek Seltzer v. Green Day Corp. A poster of Seltzer’s work, Scream Icon, was on a wall in Los Angeles and was included as a backdrop in a video during a Green Day concert. Although Seltzer believed his rights were being infringed upon, the court ruled in Green Day’s favor by affirming that the use of the image was transformative. According to the ruling, “The video backdrop using ‘Scream Icon’ conveys new information, new aesthetics, new insights and understandings that are plainly distinct from the original piece.”
The motivation behind an appropriation is quite important when a judge considers copyright infringement. Even though an artist will creat your mural, it is the real estate company that commissioned the work, and from that standpoint you may be exposed. I would reach out to the artists whose works you’ve appropriated, or their estates, to cut them in on the deal.
I have a new installation project I am about to start. It will involve an animated 3D projected image that will be programmed in the appropriate software. I will be hiring a programmer/designer as a contractor to build the images/files. Due to the pandemic, we will be remote and the work will be produced on his computer. Will he have any right or claim to part or whole of the work based on my designs? If not, how do I protect and ensure ownership and physical possession of all the related files, images to be produced?
Your installation sounds exciting and complex but the solution is simple and boring: contracts! You already describe your designer as a contractor, so it shouldn’t be any trouble to enshrine your status as the work’s sole author in your contract.
The collaborative kind of work you’re describing is fairly common in the modern age. Art today can involve teams of robotics engineers, virtual reality programmers, and toga-clad guardians named Romeo. Indeed, the organizers of the recently opened Documenta 15 prefer ephemeral art that captures the beauty of a community coming together to hash out ideas, rather than physical art that credited to a single individual.
But whether you’re Jeff Koons or a Jakarta-based group of hippies, it’s important to have a frank and open discussion about whose name will appear on the project before any work is done. Copyright protection is something that is rewarded automatically when a work is created, and if you don’t have your agreement worked out beforehand, there’s a chance it might go to your collaborator as well.
What you really want is a “work for hire” arrangement, the kind that has prevented the historical artists and writers of Marvel Comics to carve out a larger share for themselves as ever more obscure heroes are brought to the big screen. Two months ago, someone wrote into this column because her friend thought he should receive credit for a sculpture that he fabricated for a major artist. You should read my full answer here because it’s relevant to your question but my answer was, in so many words, “Sorry man. You got paid for your contribution. Now the credit for the work lies with the artist who employed you to assist.”
I love that Drake has new merch out featuring the work of British artist Richie Culver. It’s clear that our man from the 6 has a deep love for visual art—after all, the video for “Hotline Bling” was more or less set in a James Turrell! However, I’m curious as to why Drake is able to borrow from visual artists so freely. Can any recording artist do this?
First of all, Drake’s newest record is more of a dance album, so get your genres straight! And no, neither Drake nor any other artist can borrow visual art freely. Although, as we saw in the example of Derek Seltzer v. Green Day Corp, courts do find exceptions and at times rule in fair use. Isn’t the confusing world of copyright fun?
In the case of Drake’s merchandise collection, your sixth sense for copyright infringement probably perked up because the collection features a painting by Richie Culver (it reads, “Huge fan of your old stuff”) overlaid atop Drake’s older album covers. It’s a clever mashup, but based on the Artnet News article you shared, it sounds like an above-board collaboration between the two artists. The article implies that Drake received permission to reproduce Culver’s work in this capacity because his record label reached out to the gallery that represents Culver, and Culver is even quoted saying that he was flattered when Drake contacted him. This leads me to believe that all copyright permissions were cleared and that Culver was compensated. Had he not been, Culver would have been well within his rights to seek compensation and even to request that the infringing material be recalled.
The music video for “Hotline Bling,” on the other hand, was in no way a collaboration between Drake and James Turrell, even though it certainly looks like one. When it came out, I remember being struck by the scene that features a staircase leading to a skylight, because it so clearly resembles the one in Turrell’s monumental earthwork, Roden Crater. That being said, what might be most surprising about that incident is that Turrell himself responded to the similarities between his work and “Hotline Bling” by saying that while he was “truly flattered to learn that Drake f—s with me,” he wanted to stress that he had no role in the video.
Indeed some musicians have paid homage to visual artists in ways that have been, shall we say, less obviously celebrated than Drake’s. Remember Beyoncé’s music videos for Lemonade, which took inspiration both from Pipilotti Rist’s 1997 video “Ever is Over All” and Julie Dash’s 1991 film Daughters of the Dust? There was initially a bit of a controversy over whether the singer gave enough citation for her sources, though both the video work and the film saw a revival of popularity that couldn’t have left either artist feeling too bad about it.
Beyoncé’s husband Jay-Z didn’t get off so easy. Marina Abramović claimed Jay Z “used her” in what was supposed to be a collaboration on his Picasso Baby: A Performance Art Film, a music video that took inspiration from her superstar performance at MoMA, The Artist is Present (2010)—though apparently her irritation was just the result of a misunderstanding. Jay-Z had given to her foundation, as agreed upon beforehand. Abramović had just not been told.
I read recently that Ohio State University trademarked the word “the.” Does that mean I have to stop using it in the titles for my paintings? (“The titles for my paintings?” Oh, no, can I be sued for this question?) Seriously though, what are the rules now?
Did Gwyenth Paltrow worry that Steve Jobs was going to sue her when she named her daughter Apple? Did Mark Zuckerberg want people to call the fronts of their heads something different when he trademarked the word “face?” Despite his trademark, has anyone besides Guy Fieri ever used the phrase “flavor town?” The answer to all these questions is no, with the caveat that I wouldn’t put something like that past Zuckerberg.
Copyrights are about protecting ideas, but trademarks are much more about brand authenticity, and therefore tend to be very context specific. That’s why you can have H.G. Wells’ The Time Machine and its associated Hollywood adaptations and Apple’s Time Machine feature on its computers. Both are trademarked. Apple’s prolific trademarking is a fairly good example of how the words need to be used in a specific context. Chicago is one of their fonts, yes, but the Windy City is safe from the lawsuits, as is the musical. This sector specificity is, of course, why the names for new prescription drugs keep getting more and more ridiculous: it’s a narrow category and drug companies have been trademark squatting on potential new names for decades.
But it’s not like courts are looking to make things difficult for potential competitors. This LegalZoom article, for example, explains why Yves Saint Laurent was able to make its own red soled shoes, despite the look being trademarked by Christian Loubitin: “Under U.S. trademark laws, the courts will not recognize a mark that puts competitors at a ‘significant non-reputation-related disadvantage.’”
“The” is the most common word in English and Ohio State was motivated to file its application because Marc Jacobs first filed a similar one, having for some years sold “The Tote Bag” and “The Backpack.” (The company also staged photo shoots where models wore sweaters that spelled out those three magic letters.)
The “the” in Ohio State University is similarly vital to the branding of the school’s sports teams. If you go to the school, or like what their students do with inflated balls, you’d never even consider calling it “Ohio State” or OSU. The “the” is crucial as it distinguishes it from Oregon and Oklahoma. The “the” was even featured in a Saturday Night Live sketch. The New York Times, for its part called, the “the” practice “nauseatingly pompous” to the school’s rivalsBut as the Times story points out, the trademark is limited to apparel that is sold through “channels customary to the field of sports and collegiate athletics” So unless you plan on making athletic shorts with the word “the” on the behind, I think you’ll be ok.