[sdiy] The story on copyrights (was: new CD / copyright for cover art)

[Peter Grenader]

I am an art director by trade and I can answer this.

One, the use of the word 'you' is the royal you.  I am not meaning to single
out an individual here, I am speaking generally.

Secondly, I think the subject of copyright is too broad to discuss here as a
group.  In any event, it's not going to change in the near future

Thirdly, I will go on record saying the systm the US has set up for
copyright protection is fantastic.  It protects people from having their
art, whether sonic or visual, from being used for other people's benefit and
allows the creator to be protected against unauthorized usage in which the
he or she has every right to make money from.

OK, here's the story:

If this specific painting is public domain or not is key.  There is a
stature of limitation (I believe it's currently 65 years after the death of
the creator) where things do go PD.  This is why you see the Mona Lisa all
over the place - it's usage rights have expired.

If they haven't expired, you cannot use this artwork without a licence or a
release from the persons who own the rights to that artwork.

A case in point:  I had a client, a famous one, who went ahead and purchased
a painting for over $10,000 just so he could use the image for a record
cover.  I had to unfortunately inform him that even by purchasing it, it did
not give him the right to use the image as cover art - and I was correct.
He was quite upset about this given the gallery would not refund his money.

Remember, like musicians, artists make their livelyhood from their work.
The US entitles them to be paid for that and therefore, it cannot be used
unless a licence is paid or the rights are sold outright for unlimited usage
by the creator - even if the concept was not his or her own.  It's the image
itself which they retain the rights to as the creator.

An official copyright filing is not required - it is automatically granted
based on the fact that they created it.

Also, forget paintshop.  If you use the image you are infringing on
copyrights whether you alter it or not.  The way the law reads, if a jury
can, by reviewing a piece of art,  determine that it used another piece of
art's idea, whether the original art was involved or not, you are infrigning
on the concept.

About infringement:  there are two types.  Unwillful and willful.  Unwillful
means you did not know you were infringing.  An example:  Let's say you buy
a company and all it's holdings.  You use an image for an ad that was in a
brochure done for that company before the purchase, assuming that company
had the rights to do that and by purchasing that company those rights had
been transferred.  If they did not, if the rights weren't granted in writing
from the creator, then you are guilty of unwillful infringement.

WIllful means you knew you didn't have the rights and went ahead and used it
anyway.  This carries with it extreme punative damages, up to $65,000 per
occurance and it's up to the judge to determine what those would be.  This
means everytime it was used, a $65,000 maximum penalty can be awarded.  You
use it on a record cover - $65,000.  You run a picture of the record cover
in an ad - another $65,000!!!

In short, it's not worth it unless you get the rights to do so from the
creator. 

Hope this helps,

Peter Grenader


on 8/22/02 4:55 AM, jhaible at debitel.net at jhaible at debitel.net wrote:

> 
> Ok, this is slightly off topic, so please let's not start a big discussion,
> but if anybody _knows_ this stuff, I'd be glad to get some info:
> 
> I have finished recording my 3rd CD "Holiday in Purgatory", and
> I'm going to make the cover art now. I'd love to use something based on
> a Hieronymus Bosch painting. It's easy to find that on the web.
> How is the copyright situation? I would certainly not just use a picture
> as I find it, but alter it it in paintshop to fit my needs. Would this=20
> infringe any copyrights?
> 
> Thanks in advance,
> 
> JH.