Why We Won’t Go to China

Cat on photocopier
Copy cat by gosheshe from Flickr’s Creative Commons

If you’re in the art consulting business long enough, there are a few questions you don’t want your client to ask, questions like “I found an artwork online that I love, but can you make it for me instead?” or “I want that art, but can you make it cheaper?” or worst “Can’t we just make it in China?”

Our emphatic, everlasting answer: No China.  No way, no how, and nothing is going to change our minds.

What’s with the China pooh-poohing? Don’t get us wrong, we’re not anti-China by any means (the Chinese invented silk, paper, playing cards and fireworks, after all, for which we are eternally grateful.)  What we really mean is that we’re not in the business of art knockoffs, quickie reproductions or cheapo imitations of any sort – not from anywhere or anyone – because art is special.  And we don’t mean special in air quotes with a wink, wink. We’re talking the kind of special that transcends language, culture, age, ethnicity, religion, sexuality, gender and socioeconomic class.  It’s the kind of special that can transport you 17,300 years in the past to a cave, it walls covered with herds of painted horses, deer and bulls charging through fire-cast shadows.  Art is special because, as Denver art collector Dana Cain says, it survives, it endures, it remains relevant long after the final brushstroke dries.  In short, art is the kind of special that reminds us what this whole human business is about.  And that kind of special demands to be treated with integrity and respect.

Caving in to dollar signs is a short-sighted tactic with long-term effects that undermines individual artists, galleries and dealers whose livelihoods depend on the production and sale of artwork, eliminates the intrinsic emotional, spiritual and aesthetic value of an artwork, and essentially steals someone else’s intellectual property for your own benefit, all of which pretty much amounts to flat-out copyright infringement.  That’s a pretty bleak Cost/Benefit Analysis, if you ask us.

We want to empower artists, designers AND clients, give you the knowledge you need to navigate the at-times murky waters of intellectual property law as it relates to art (even Uncle Sam recognizes how special art is!)  Where do you even start?  Miriam Trudell, Shareholder at Sheridan Ross whose expertise is in intellectual property rights, gave us the down and dirty on copyright law and art.

Myth #1: I have to register my art in order to have a copyright on it.

So not true! As soon as an artist puts down the work in a tangible form, s/he owns the copyright – no registration required.  Registering an artwork is optional but could be a prescient move that entitles you to a higher level of statutory damages (up to $150,000) should infringement occur.  It costs $35 per application and artists can register several works under one application.  If you wait to register until infringement has already occurred, you may not get as high of an award.  Don’t bother with the poor man’s copyright (mailing yourself your work for the postmark date) because it won’t do much if anything in a court.  If you want to get in on the registration action, you may want to check out Copyright Collaborative, a member-based association offering artists and creative businesses tools for understanding and managing their intellectual property.

Bottom line: You own the copyright as soon as you make the art; you don’t have to register your art but it may be in your best interest to do so.

Myth #2: If I own a work of art, I own the copyright, too.

Nope, the artist retains the copyright even after a work has been sold for the duration of the artist’s lifetime plus 70 years. That means that if you own a Picasso (lucky you), his heirs own the copyright until 2043 at which point the work is in the public domain.  The only exception would be if the artist explicitly grants you a license to use the work in some way. (Interested in sharing your work with the public at-large or using licensed art? You might check outCreative Commons, which lets you grant levels of copyright permissions to your work or use other people’s work for your own purposes.)  Some fine print to consider when you own art: as the owner, you have the right to display the work as you wish whether that’s on a wall, in a closet or as a doormat.  You do not have the right to reproduce the piece or create and sell items with the image on it.  If you want to use the image somehow (including in photographs), make sure you get permission from the artist first. A little CYA goes a long way.

Bottom line: The artist retains the copyright for his/her lifetime plus 70 years.  The art’s owner only owns the piece itself not the image.

Myth #3: If I change something by X%, then it’s not copyright infringement.

Sorry to say, but X is a figment of your imagination – 100% myth.  Copyright law does not deal in percentages but rather “substantial similarity” between the original and an alleged copy, which allows for some wiggle room – the copy doesn’t have to be exact and complete, it just has to be substantial.  The copying test asks these questions of the alleged copy: 1. was there access to the first work? 2. was there copying? 3. was the copying substantial? These questions preclude instances of coincidence, which do in fact happen.  For example, Sir Isaac Newton and Gottfried Leibniz independently developed calculus – each using his own method and theories but each arriving at the same result. On the flip side, certain uses of a copyrighted work are considered fair for limited and/or “transformative” purposes such as criticism, commentary, news reporting, teaching, scholarship, research and parody.  Still confused? Check out this primer from the Philadelphia Volunteer Lawyers for the Arts on fair use.

Bottom line: Straight-out copying is never a good idea; appropriate at your own risk.

Myth #4: As soon as I have an idea, it’s copyrighted.

Oy vey!  Intellectual property is a bit of a misnomer.  Ideas themselves cannot be copyrighted – it’s the tangible execution of those ideas that are protected, the physical embodiment whether by paper, canvas, Word document, audio/video recording, etc.  Before you think that such a law is downright crappy, chew on this juicy nugget: where does an idea begin and end?

Bottom line: Like Olivia Newton John says, “Let’s get physical!”  Draw, paint, sculpt, record, write, sketch, type. Just make sure you do something but understand that even if you do, the idea itself is up for grabs.

Now that we’ve put your brain into copyright overdrive, let’s take a step back.  Being a part of art, whether as an artist, collector or viewer, means being a part of a larger conversation.  Inherently, all art is a reaction to what’s come before it.  If you’re participating in that dialogue by expanding, transforming and examining it, chances are all this copyright jazz doesn’t really enter into the equation – it will naturally be there already because you’ve begun on the ethical path in the first place.  When you’re more concerned about personal gain, profits and/or lowering dollar signs, that’s when the Copyright Gut Check comes into play: if something feels smarmy, it probably is.  Your best bet is to be on the up-and-up.  You’ll reap the benefits of good karma, be in the clear with the long arm of the law and help preserve a bit of humanity all in one go, which is a Cost/Benefit Analysis we can stand behind!

Image credit: Copy cat by gosheshe from Flickr’s Creative Commons

Martha Weidmann

Martha Weidmann

CEO & Co-Founder