NOTE: This information contains direct quotes from Legal Guide for the Visual Artist, 4th Edition (1999) by Tad Crawford. All quotes are used with kind permission of the author.

Thousands of images on the web don’t have a copyright notice, watermark, or Digimark®. Since nobody bothered to copy-protect them, why can’t I just download them for my own art and web site?
As of March 1, 1989, copyright notice is not required in order for the work to be protected by law. Copying is an infringement, unless it is covered under fair use.

Remember, as soon as a work is embodied in a tangible form, it is automatically copyrighted according to law. Downloading “unprotected"? images for use in your own art or web site is a violation of copyright law.

When am I allowed to use a work that is copyrighted?
You can legally use a copyrighted work under certain circumstances. You can purchase a license or get explicit written permission from the copyright holder to use the work in a specific project or application. There is also what is considered fair use by the law. All other uses are considered copyright infringement and are punishable by law.

How do I get permission to use a copyrighted image?
If you know the copyright holder, you can simply ask for written permission.

What is the test for copyright infringement?
“It is whether an ordinary observer, looking at the original work and the work allegedly copied from it, recognizes that a copying has taken place."?

Even if the copy is larger than the original, rendered in a different medium, or altered in some way (such as Photoshop filters and collages), the copying is still an infringement, “if the ordinary observer test leads to the conclusion that more than a trivial amount of the original work has been copied."?

“Some art school instructors tell their students that if more than a certain percentage of the original work is changed, perhaps 25 or 33 percent, the new work will not be an infringement. These instructors are incorrect, because copyright law neither includes nor recognizes such a percentage test."?

What’s the difference between theft and infringement?
If a person steals a painting from an art gallery, it is theft. If a person illegally copies an image (downloaded from the Web, or reproduced by mechanical or other means), it is infringement.

Theft is violation of criminal law. The punishment is incarceration (a prison sentence), fines, or both.

Infringement is a violation of civil law. The punishment is a law suit and/or an injunction. An injunction is a judicial process restraining a person from a wrongful act (such as exhibiting or selling an infringed work of art), or compelling restitution to an injured party (such as a public statement of apology, payment of damages, etc.) Note that statutory damages for copyright infringement can be anywhere from $200-$100,000, depending on whether the infringer is deemed innocent or willful.

I’m only a student, and I won’t make any profit on my classroom projects. Why can’t I just use images I find to learn Photoshop® or make practice collages for my web site?
Any copying of a copyrighted image that you don’t have permission to use is considered an infringement.

As soon as an image is posted to a web site or shown as part of a portfolio, it is considered to be in public exhibition. If the work violates copyright law you may be subject to punishment.

It is advisable to create your own images from scratch, get licensed or written permission from copyright holders or your artist/photographer friends, or find sources of copyright-free images. Some copyright holders may grant written permission for students to use copyrighted images in college assignments.

Where can I find copyright-free images?
If you surf the Web, you can find sources of copyright-free imagery. Some sites provide free “click-art"? which you can legally download and use.

Certain copyright-free imagery is free to download; others must be purchased from stock imagery firms with a specific-use license.

You can also purchase inexpensive books of “clip-art"? or copyright-free images, such as the Dover Pictorial Archive series. These works are in the public domain (see below), but you still need to check the copyright permission notice for the publisher’s terms (generally inside the book’s front cover).

When is a work considered to be in the public domain, and therefore copyright-free?
Generally, a work of art enters the public domain when the copyright has expired. This is many years after the artist’s death (roughly 50 years in the USA and 75 years in Europe). However, just because an artist has been dead for many years doesn't automatically mean that his or her work is out of copyright; it may still be owned by a gallery or the artist's estate. Similarly, a printed or digital reproduction of a work in the public domain may be copyrighted by a publisher.

“A work in the public domain has no copyright and can be freely copied by anyone."?

Many works of art from the distant past, such as Leonardo Da Vinci’s “Mona Lisa,"? Michaelangelo’s “David,"? or Botticelli’s “The Birth of Venus,"? are now in the public domain. However, a photographer or an art stock firm may hold the copyright on a specific photo of one of these works. In the case of a sculpture such as “David,"? the photographer may be able to prove copyright infringement.

References

  • Crawford, Tad. Legal Guide for the Visual Artist, Fourth Edition. New York: Allworth Press, 1999.
  • Gasaway, Lolly. When Works Pass Into the Public Domain. http://www.unc.edu/~unclng/public-d.htm